Refusal of ICC request - competing request

Federal Republic of Germany

Germany - Cooperation with ICC 2002 EN

Part 2 Surrender of persons

ยง 4 Requests for Surrender and Requests for Extradition
(relating to Article 90 of the Rome Statute)

(1) If a foreign state requests extradition of a person on the basis of a criminal act over which the Court has jurisdiction, the Court may be informed of the submission of the request. Upon request, the Court will be given a copy of the extradition request and the accompanying documents, when the foreign state does not object to the transmittal and the transmittal does not contradict other international law agreements.
(2) Should the Court request surrender and a foreign state request extradition of the same person, the Court and the state will each be notified of the other request. If the request for surrender and the request for extradition are each based upon the same criminal act, this shall be included in the notification required in the first sentence.
(3) If extradition has not been approved at the time of receipt of the request of the Court for surrender, the decision regarding this will be deferred conditional upon paragraph 5 until a decision regarding approval of the surrender. The decision regarding which request will be given priority will be made in accordance with Article 90 para. 2, 4, and 7 (a) of the Rome Statute.
(4) In cases under Article 90 para. 2-6 of the Rome Statute, after approval of the request for surrender the decision on the approval of extradition shall be deferred until a final decision in the proceedings before the Court regarding the criminal acts upon which the request for surrender was based.
(5) In a case under Article 90 para. 5 of the Rome Statute, if the Court has not decided on permissibility within two months after the notification pursuant to Article 90 para. 1 of the Rome Statute, a decision may be made regarding approval of the extradition when the other prerequisites are met.
(6) In cases under Article 90 para. 6 and 7 (b) of the Rome Statute, the request of the Court will be given priority to the extent that, when considering all of the criteria in these provisions, the reasons in favor of approving the extradition request are not clearly predominant.
(7) The Court will be notified in all cases of the decision regarding the extradition request.

Rome Statute

Article 90 Competing requests

6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court and the requesting State.

Article 93 Other forms of cooperation



(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.

(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.